Britain

OXFORD – A capstone of my Hilary-Trinity Term visit here took place yesterday, when I presented “A New History of the Nuremberg Trials: Figuring Women and Others into the Narrative” to law students and faculty who gathered at the Bonavero Institute of Human Rights, located at Oxford University’s Mansfield College. The Oxford Transitional Justice Research network cosponsored.

Professor Kate O’Regan, director of the institute and a former judge on the Constitutional Court of South Africa, opened my Research Visitor Seminar. Then came my  presentation of my research on the roles women played at Nuremberg – not only the Trial of the Major War Criminals before the International Military Tribunal, but also the 12 subsequent American trials before what are known as the Nuremberg Military Tribunals. Next, Dapo Akande, Professor of Public International Law at Oxford’s Blavatnik School of Government, offered discussant’s remarks before opening the floor for a stimulating round of Q&A.

I’m grateful to all at the Institute for this event and the hospitality I’ve enjoyed during my stay at a Bonavero Research Visitor and Mansfield College Visiting Fellow. Grateful, too, for the opportunities I’ve had to present this work elsewhere in Europe, at the Irish Centre for Human Rights at the National University of Ireland Galway, University of Stockholm, University of Göttingen, and Max Planck Institute Luxembourg.

Following a raft of ratifications this week, the Arms Trade Treaty is 4/5 of the way toward entry into force.

Paying-the-priceDepositing their instruments of ratification on Tuesday were Australia, Austria, Belgium, Burkina Faso, Jamaica, Luxembourg, Saint Vincent and the Grenadines, and Samoa. They join 30 other countries that’ve become full members of the treaty since its adoption by the U.N. General Assembly on April 2, 2013. Ten more joinders are needed for the treaty to take effect.

In its 28 articles, the Arms Trade Treaty provides for states parties’ regulation of traffic in a range of arms, from battle tanks to light weapons. (Prior posts available here.) As indicated by the Control Arms poster above, regulating the latter is a principal aim of treaty proponents. (image credit)

Among the 5 permanent members of the U.N. Security Council (among them major arms-exporting states), Britain and France have ratified. The United States signed last September, but the treaty has not been presented to the Senate for consideration. China has not signed; Deutsche Welle reported this week:

‘China has indicated that it would consider signing if the US ratified, which is unlikely to happen.’

And in late May, the Voice of Russia reported that the Russian Federation would not sign, for the following reasons:

‘Russia considers this document to be not completely thought through. It also discriminates against the Russian military-industrial complex.’

somersetLooking forward to presenting “The Protection of Persons in Militias in Time of Civil War” at the 2014 Spring Conference of the British Branch of the International Law Association, to be held May 23 and 24 at the Dickson Poon School of Law, King’s College London. Also scheduled to take part are many old and new colleagues, including the host, my former University of California colleague, David D. Caron, Dean at the law school since last May. (credit for photo of law school; prior post)

Highlights from the conference agenda include speeches by James Crawford and Philip Allott, both of the University of Cambridge, as well as a presentation on the American Law Institute Fourth Restatement project by the project’s Co-Reporter, Paul B. Stephan, University of Virginia, with comments by Chanaka Wickremasinghe of the British Foreign & Commonwealth Office. In addition, there will be a host of panel sessions, on:

Friday, May 23:

► “The Relationship between National, Regional, and International Legal Orders.” Chaired by Lord Judge, King’s College London, and featuring presentations by Elena Katselli, Newcastle University; Gregory Messenger, University of Oxford; Aoife O’Donoghue, Durham University; and Chiara Giorgetti, University of Richmond.

► “The History and Future of Regulating the Oceans.” Chaired by David Caron, King’s College London, and featuring presentations by Henry Jones, Durham University; Steven Haines, University of Greenwich; and Patrick Wall, Australian Attorney-General’s Department.

► “On Sovereignty.” Chaired by John Tasioulas, University College London, and featuring presentations by Scott Sheeran, University of Essex; Thomas Pogge, Yale University; and Eyal Benvenisti, Tel Aviv University.

► “The Trafficking, Movement and Protection of Human Beings.” Chaired by Satvinder Juss, King’s College London, and featuring presentations by Lorna McGregor, University of Essex; Anicée Van Engeland, School of Oriental & African Studies, University of London; and Benjamin Thomas Greer, Office of the Attorney General, California Department of Justice.

► “Technological Futures and Law of Armed Conflict.” Chaired by James Gow, King’s College London, and featuring presentations by Marco Roscini, University of Westminster; Agnieszka Jachec Neale, British Institute of International and Comparative Law; Jack McDonald, King’s College London; and Thomas Rid, King’s College London.

► “Human Rights in a Digital World.” Chaired by Philippa Webb, King’s College London, and featuring presentations by Lanah Kammourieh, Université de Paris II (Panthéon-Assas); Russell Buchan, University of Sheffield; Sejal Parmar, Central European University; and Jemima Stratford, Brick Court Chambers.

British-Branch-Logo-ILA► “Jurisdictional Challenges and Accountability in a Transnational Context.” Chaired by ILA British Branch President Jeremy Carver, and featuring presentations by Ursula Tracy Doyle, Northern Kentucky University; Merryl Lawry-White, Judicial Assistant/Clerk, International Court of Justice; Jiewuh Song, Goethe University; and Yaël Ronen, Sha’arei Mishpat Academic Center.

► “The Future of Old Schools.” Chaired by Thomas Schultz, King’s College London, and featuring presentations by John Linarelli, Swansea University; Teerawat Wongkaew, Graduate Institute of International and Development Studies; and Yuliya Guseva, Rutgers-Newark.

Saturday, May 24

► “The Outer Limits of Environmental Protection under International Law.” Chaired by Alan Boyle, University of Edinburgh, and featuring presentations by Emanuela Orlando, University of Sussex; Jessica Duggan-Larkin, University College London; Nengye Liu, University of Dundee.

► “Avoiding and Regulating Armed Conflict.” Featuring presentations by Sean Aughey, 11 KBW Chambers; Jeffrey Davis, University of Maryland; Aurel Sari, University of Exeter; and Danny Auron, Fordham University.

► “The Sources of International Law Revisited.” Chaired by Frank Berman, Essex Court Chambers, and featuring presentations by Danae Azaria, University College London; Eirik Bjorge, University of Oxford; Başak Çali and Elizabeth Ann Griffin, Jindal Global University; and Panos Merkouris, University of Groningen.

► “Law of Armed Conflict: Emerging Challenges.” Chaired by Guglielmo Verdirame, King’s College London, and featuring presentations by yours truly, Diane Marie Amann, University of Georgia; Robert McLaughlin, Australian National University; Douglas Cubie, University College Cork; and Jadranka Petrovic, Monash University.

► “Contemporary boundary delimitation issues and island sovereignty questions.” Featuring presentations by Richard Schofield, King’s College London, who also will chair the session, along with Timothy Lindsay, Dechert; Charles Claypoole, Latham & Watkins; Ioannis Konstantinidis,  Volterra Fietta.

► “The Protection of Foreign Investment.” Chaired by Giorgio Mandelli, Volterra Fietta, and featuring presentations by Erman Özgür, University of Dundee; Mona Pinchis, King’s College London; Rumiana Yotova, University of Cambridge; and Martins Paparinskis, University College London.

Details and registration here. Hope to see you there.

eventWASHINGTON – Yesterday I had the honor of serving as Distinguished Discussant for the 16th Annual Grotius Lecture, a keynote event at the ongoing joint meeting of the American Society of International Law and the International Law Association. Delivering the lecture was NYU Global Law Professor Radhika Coomaraswamy, whose former posts include Special Representative of the U.N. Secretary-General on Children & Armed Conflict and U.N. Special Rapporteur on Violence against Women. (event video here) Her talk was entitled “Women and Children: The Cutting Edge of International Law.”

Below is a version of my remarks in response, prepared and delivered in my personal capacity. The final, fully footnoted article is set to appear in due course, along with that of Professor Coomaraswamy, in the American University International Law Review, thanks to the lecture’s cosponsor, American University Washington College of Law.

The Post-Postcolonial Woman or Child

“‘Let the child be excused by his age, the woman by her sex,’ says Seneca in the treatise in which he vents his anger upon anger.” So wrote the namesake of this lecture, Hugo Grotius, in his masterwork entitled The Law of War and Peace. With this 60862quotation, “Let the child be excused by his age, the woman by her sex,” Grotius traced to the writings of an ancient Roman philosopher the injunction against harming women and children in time of war. Grotius’ reiteration of Seneca’s words tacitly admitted that as late as 1625, armies still were violating the injunction. Sadly, the same is true 389 years later. Today neither women nor children are excused from wartime assaults, violence, and upheaval. In Syria alone, three years of conflict have left well over 100,000 persons dead, and forced another 2.5 million persons to flee their country. Women and children are included in those statistics. Conflicts elsewhere generate similarly grim numbers, as Professor Coomaraswamy indicated by her references to the Central African Republic, to the Democratic Republic of the Congo, and to her own homeland of Sri Lanka. Indeed, outrage at the persistent violation of laws protecting women and children undergirds the Grotius Lecture that we have just heard.

Commensurate with her distinguished career in international law academia, policy, and practice, Professor Coomaraswamy has presented a vast and intricate tapestry of global developments. It would be impossible for me to comment in full in the time allotted. Instead, I propose to pull five strands out of the fabric of her lecture and to weave them anew, as a means to invite the imagining of a possible future, that of “the post-postcolonial woman or child.”
My first strand addresses Professor Coomaraswamy’s statements of concern about postcolonial theorists prevalent in the global south. These scholars, she said,

‘reject the human rights framework as part of the ‘liberal’ ‘imperialist’ project especially when it comes to cultural practices. … [They] rejec[t] the dominance of the European Enlightenment and the sacredness of the power of reason.’

My response might raise hackles among some of those scholars, for it begins with this claim: We are all postcolonials now.

By way of example, both of my own countries of citizenship are postcolonial states. Read Full Article

In its first-ever case involving investor-state arbitration, the U.S. Supreme Court yesterday ruled against the state. The state at bar was the Republic of Argentina, which had sought to defend the reversal below of a 2007 decision in which a 3-member arbitral panel awarded $185 million in damages. But in its decision in BG Group plc v. Republic of Argentina, the high court overturned the appellate decision.  A seven-member majority accepted the argument of petitioner, a British company that had suffered losses on a Buenos Aires investment as a result of emergency measures Argentina took during an early 2000s economic collapse. The private investor had sought arbitration without first fulfilling a requirement, found in Article 8(2)(a) of the 1990 Britain-Argentina BIT, the insiders’ shorthand for “bilateral investment treaty.” Arbitrators excused that nonfulfillment, and the Court majority deferred to the arbitrators. In so doing, it rejected the de novo review applied by the court below and urged by Argentina.

Iscot‘ve had the honor of following this case for SCOTUSblog, via a pre-argument preview, a post-argument recap, and, just posted, an opinion analysis. After summarizing the opinion for the Court by Justice Stephen G. Breyer, the dissent by Chief Justice John G. Roberts, Jr., and the concurrence in part by Justice Sonia Sotomayor, the analysis views the decision as advancing a clear statement rule,

‘a rule that no less than a private party, a nation-state which wants to assure that courts rather than arbitrators have the last word on whether it consented to arbitration must say so explicitly.’

As for treaties that are explicit on this account, among them a number of BITs to which the United States is a party, the analysis, available in full here, concluded:

‘Whether in some future case the Supreme Court will enforce such express provisions remains an open question.’

seanross2Serendipity found my students and I rereading the unvarnished story of Philomena Lee this week, just before the Hollywood film Philomena competes in Sunday’s Academy Awards.

The film is lovely, warmed by on-screen chemistry between Judi Dench, who plays Lee, and Steve Coogan, who plays journalist Martin Sixsmith. Bits of humor between them smooth the sharp edges of Lee’s search for the child she’d given up for adoption many years earlier.

The real story is a bit more raw: “The Catholic church sold my child” reads the headline of a 2009 news article by Sixsmith, published when his book on Lee was released in England. The article recounts how a 1950s Irish family sent Lee, then 18, pregnant, and unmarried, to a Mother and Baby Home at a Tipperary nunnery. There she gave birth. There too she was compelled to put in three years’ labor, and, eventually, to give up the son she’d helped care for till he was a toddler. Sixsmith writes:

‘Early on in the search I realised that the Irish Catholic hierarchy had been engaged in what amounted to an illicit baby trade. From the end of the second world war until the 1970s, it considered the thousands of souls born in its care to be the church’s own property. With or without the agreement of their mothers, it sold them to the highest bidder. Every year, hundreds were shipped off to American couples who paid “donations” (in reality, fees) to the nuns. Few if any checks were made on the suitability of the adopting families – the only condition laid down by Archbishop McQuaid was that they should be practising Catholics.’

seanrossSilence enveloped the decades-long practice. Even International Child Law, the circa-2010 British text that we’re using in my Children & International Law seminar, makes no note of it: though these out-of-Ireland adoptions occurred just an island away, the book’s chapter speaks of 1950s intercountry adoption solely in the context of U.S. adoptions of children born in wartime Korea.

This may change, as Lee has helped found The Philomena Project, committed to push, in Ireland and in the United Kingdom, for legislation that would ease access to adoption information. (credit for undated photos, of the Mother and Baby Home where Lee was placed, courtesy of the Adoption Rights Alliance, which is working with the Project)

The Project calls for justice along the lines of the efforts begun in relation to another tragic Irish institution of the era, the Magdalene Laundries, the subject not only of a 2002 film, but also of a 2011 report by the U.N. Committee Against Torture. To date those efforts have resulted in an official state apology regarding the Magdalenes practices – though not yet the actual award of promised reparations, as a recent post in the Human Rights in Ireland blog detailed.

nwc_leftCan the laws of war constrain robot warriors? Is international humanitarian law adaptable to the use of weapons that possess artificial intelligence? To what extent can such weapon systems determine who is, and who is not, a combatant? To what extent must humans control the decision to kill the enemy?

These questions and others fostered a fascinating discussion at “Legal Implications of Autonomous Weapon Systems,” a workshop at the Naval War College in Newport, Rhode Island, this past Thursday and Friday. We four dozen or so attendees were drawn from the armed forces of the United States, Australia, Britain, Canada, and Israel, from the International Committee of the Red Cross, and from a global array of academic institutions.

As one who reserves just a couple days for the topic in my Laws of War course, I came to the workshop with more questions than answers about the actual and potential uses in armed conflict of robots, the shorthand term I’ll use here for “autonomous weapons systems.” The military, characteristically, prefers an acronym: AWS.

The actual use of such weapons already is significant. Smart missiles called JDAMs deliver munitions to a target, while a WALL·E-looking machine called SWORDS has, as the U.S. Department of Defense wrote in 2004, “march[ed] into battle” alongside troops.

In fact, such machines tend not to be used in a fully independent manner (though with a little reprogramming, some could be). They are, we were told, semi-autonomous – humans are kept “in” or “on” the loop leading to choice of target and other decisions.

This mention of human supervision, like the WALL·E-on-the-march metaphor above, pointed to a pivotal workshop topic:

nwc_right►  Is it appropriate, as a matter of law or of ethics, to indulge in the human tendency to anthropomorphize these machines?

Apparently, some lab robots can recognize – or at least can mimic the act of recognizing – themselves in a mirror. Does this mean they are, or soon will be, sufficiently human-like to conduct operations wholly without oversight by actual humans? Might human-like robots evolve an ability to refuse programmed orders – orders that limited action to the boundaries of international humanitarian law? The answers to these questions, like many at the workshop, seemed to be “perhaps yes, perhaps no.”

At one end of the spectrum, this uncertainty has spurred a call for an outright ban. Emblematic is the headline of a notice about the November 2012 release of the Human Rights Watch report, Losing Humanity:

‘Ban ‘Killer Robots’ Before It’s Too Late: Fully Autonomous Weapons Would Increase Danger to Civilians’

At the other end of the spectrum, some would prefer to let the technology develop before the onset of any new legal regulation.

Many seem to fall in between. Acknowledged were some challenges; for instance:

► Does compliance with the precautions requirement of Article 57 of the Additional Protocol I (1977) to the four Geneva Conventions (1949) preclude the use of a fully autonomous weapon?

► Would the robotic commission of a war crime be susceptible to sanctions by global justice mechanisms like the International Criminal Court, and if not, what effective sanctions and deterrents would there be?

Persons falling in the vast middle of the regulatory spectrum harbored concerns about such questions, yet seemed to lean toward the view that if due care is taken, international humanitarian law can – and should – be applied. Documents discussed in this vein included the:

► U.S. Department of Defense Directive 3000.09, ¶ 4(a) (November 12, 2012), which states as “DoD policy” the following:

‘Autonomous and semi-autonomous weapons systems shall be designed to allow commanders and operators to exercise appropriate levels of human judgement over the use of force.’

heyns► April 9, 2013 report to the U.N. Human Rights Council by University of Pretoria Law Professor Christof Heyns, who’s served since 2010 as the Special Rapporteur on extrajudicial, summary or arbitrary executions. At ¶ 108 of his report, Heyns termed the 2012 Defense Directive as “imposing a form of moratorium” with respect to what he termed “lethal autonomous robotics,” or LARs. Heyns’ 2013 U.N. report (¶ 35) favored a broader scope for delay:

‘The present report … calls on States to impose national moratoria on certain activities related to LARs.’

A reprise of such issues likely will occur at the Meeting of Experts on Lethal Autonomous Weapons Systems set for May 13 to 16 in Geneva under the auspices of the 1980 Convention on Certain Conventional Weapons. Named in full the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects as amended on 21 December 2001, this treaty has 117 states parties, including the United States.

The Naval War College International Law Department workshop’s vital and timely discussion exposed many avenues for study – study sooner rather than later, so that the legal regulatory framework may be determined before fully autonomous robots are fully deployed.